Sep 282014
 

http://wikileaks.org/cable/2009/04/09MANILA903.html#
Reference ID Created Released Classification Origin
09MANILA903
2009-04-27 08:39
2011-08-30 01:44
CONFIDENTIAL
Embassy Manila

VZCZCXRO9560
OO RUEHNH
DE RUEHML #0903/01 1170839
ZNY CCCCC ZZH
O 270839Z APR 09
FM AMEMBASSY MANILA
TO RUEHC/SECSTATE WASHDC IMMEDIATE 3935
INFO RUEHNH/AMCONSUL NAHA IMMEDIATE 0144
RUEKJCS/SECDEF WASHDC IMMEDIATE
RHEHNSC/NSC WASHDC IMMEDIATE
RUEKJCS/JOINT STAFF WASHINGTON DC IMMEDIATE
RHHMUNA/CDRUSPACOM HONOLULU HI IMMEDIATE
C O N F I D E N T I A L SECTION 01 OF 02 MANILA 000903

SIPDIS

E.O. 12958: DECL: 04/27/2019
TAGS: PREL MARR KCRM CASC RP
SUBJECT: FOREIGN SECRETARY CONCURS WITH RAPID SMITH DEPARTURE

REF: MANILA 864 AND PREVIOUS

Classified By: Ambassador Kristie A. Kenney for reasons
1.4 (b) and (d).

¶1. (C) SUMMARY. Following intense media pressure following
the Philippine Court of Appeals’ April 23 acquittal of Lance
Corporal Daniel J. Smith, press interest has begun to
subside. The public focus remains whether the U.S. and
Philippine governments followed proper procedures in
transferring Smith out of the Philippines, and if the two
governments have begun “renegotiation” of the Visiting Forces
Agreement. Department of Foreign Affairs and Malacanang
Palace officials have spoken out strongly, stating
unequivocally that, in accordance with the Appeals Court
decision, Smith was properly released immediately and they
were notified by the U.S. Embassy before he was taken out of
the country. In a private breakfast meeting April 27,
Foreign Secretary Alberto Romulo told Ambassador that he
expected the Senate to hold hearings in May on the Visiting
Forces Agreement and suggested that the Mission and the
Department of Foreign Affairs consider quiet discussions on
custody and detention facilities under the Agreement. The
Mission believes this is an opportune time to begin discreet
engagement with the Philippine government, both to clarify
the lingering issue of custody, which the Agreement left
vague, and to determine appropriate detention facilities for
U.S. personnel upon conviction. END SUMMARY.

RAPID DEPARTURE CORRECT
———————-

¶2. (C) The Embassy learned of the Court of Appeals ruling the
afternoon of April 23, after receiving a copy of the decision
sent by courier directly to Smith. Relying on the language
of the decision that Smith was “ordered released
immediately,” and on representations from the Office of the
Solicitor General and the Department of Foreign Affairs Legal
Office that under the doctrine of double jeopardy the
Philippine Government could not appeal the case and Smith
could leave immediately upon acquittal, the Embassy used
military assets, currently in the Philippines for the annual
Balikatan exercises, to transfer Smith to Guam the same day.
Embassy officials engaged in intense coordination with the
Department of Foreign Affairs (DFA) throughout the process
and sent the DFA a diplomatic note April 24, officially
notifying the Philippine government that Smith had departed.
In accordance with the Visiting Forces Agreement, Smith had
entered Philippine soil without going through immigration or
customs procedures; he departed the Philippines in the same
manner, without going through immigration and customs
procedures, consistent with his immigration status.

¶3. (C) While the practice is legal and conforms with the VFA,
activists and opponents of the VFA are using this issue to
question whether these procedures violated the sovereignty of
the Philippines. As the Ambassador has stressed in public,
the Smith case demonstrated that the VFA works. In the 10
years the VFA has been in effect, there has been only one
case of its kind that has taken place, despite the fact that
tens of thousands of U.S. military personnel have
participated in bilateral exercises. During the arduous
legal proceedings of the last three-and-a-half years, both
the Philippine government and the Embassy have lived up to
the requirements of the VFA, as Philippine officials readily
acknowledge. Still, the issue of Smith’s custody on Embassy
grounds exacted a significant toll, both in terms of negative
impact on the U.S. Philippine relationship given intense
negative publicity surrounding his stay, as well as the
administrative difficulties and complexities entailed in his
custody here at the Chancery.

CLARIFYING CUSTODY AND DETENTION FACILITIES
——————————————-

¶4. (C) In a private breakfast meeting April 27 (septel),
Foreign Secretary Alberto Romulo told Ambassador that he was
pleased with the outcome of the case, attributing the success
on the excellent collaboration the Philippine government had
enjoyed with the Embassy. He observed that with several
thousand U.S. servicemen currently in the Philippines for the
Balikatan bilateral exercises it was imperative that both
sides completely followed the letter of the VFA. Romulo said
he expected the Senate to hold hearings, probably in May, on
“renegotiating” or outright abrogating the Visiting Forces
Agreement. He speculated that with the Presidential election
beginning to gear up, many would-be presidential candidates
would use the issue to advance their interests. He suggested

MANILA 00000903 002 OF 002

that the two governments begin very discreet preliminary
discussions on custody and on appropriate detention
facilities for convicted U.S. servicemen.

COMMENT
——-

¶5. (C) Given ambiguity in the VFA about both where custody
lies following initial conviction of a U.S. servicemen and
detention facilities where they should be held, we believe it
is important that we begin discussions on how we clarify
these undelineated requirements and whether there is a more
workable, less debilitating, custody process. The last
three-and-a-half years have clearly demonstrated that U.S.
Chancery grounds are not appropriate detention facilities to
hold such servicemen in custody, not least because Mission
personnel have neither the resources nor expertise to serve
as jailors. We believe that the unusual situation of having
a diplomatic facility as a place for detention should be
clarified in future discussions with the Philippine
government. Post will provide suggestions in coming weeks as
we digest the long term lessons of this case.
KENNEY

   

 

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